April 27, 2019

The Supreme Court of the State of Kansas (“Kansas Supreme Court”) held in its opinion filed on April 19, 2019: “because no evidence in the record supports [the plaintiff’s] factual assertion that her counsel timely submitted the same petition as the one eventually file stamped by the clerk … [a]nd without this evidence there is no factual support for her argument … [the plaintiff] failed to meet the evidentiary standard required when responding to a motion to dismiss with facts outside the pleadings. See K.S.A. 2018 Supp. 60-212(d); K.S.A. 2018 Supp. 60-256.”

Hence, the Kansas Supreme Court did not reach the issue raised by the plaintiff on appeal: whether a document is filed for purposes of the statute of limitations when uploaded to the electronic filing system or when the clerk of the district court accepts and file stamps it.

The plaintiff filed the Kansas medical malpractice wrongful death lawsuit on June 23, 2016, alleging that the defendants committed negligence and medical malpractice that caused the decedent’s death on June 22, 2014. The defendants, relying on the plaintiff’s pleading, moved to dismiss, pointing to the date file stamped on the petition and the date of the decedent’s death, arguing that the petition was filed one day after the two-year limitations period expired.

The plaintiff responded that she electronically filed the petition on June 22, 2016 but the clerk’s office rejected the original June 22 submission, informing her that she needed to refile the petition without listing the estate as a plaintiff in the e-filing system. The plaintiff’s Kansas medical malpractice lawyer claimed that she followed those directions, and the clerk’s office accepted the filing on June 24, 2016 and file stamped it to reflect the time on June 23, 2016 that the petition was uploaded to the e-filing system for the second time. The plaintiff’s lawyer asserted that she made no changes to the document between the first and second filings and she had correctly submitted payment on June 22, 2016, arguing that the filing date should be June 22, 2016.

The district court dismissed the plaintiff’s Kansas wrongful death lawsuit, and the plaintiff appealed.

The Kansas Supreme Court stated that the plaintiff did not support her response to the defendants’ motions to dismiss with documentation, an affidavit, or a declaration. Nor did she cite any authority to support the use of the earlier filing date: the only legal citation in her district court response was “K.S.A. 60-206A1(a).”

The Kansas Supreme Court stated “even drawing all reasonable inferences in [the plaintiff’s] favor, all we can conclude based on the factual record is that her lawyer filed a medical malpractice action on June 22, 2016 … [w]e cannot make the critical link between the exhibit showing an attempt to file a medical malpractice action and the particular medical malpractice action filed by [the plaintiff] without some affidavit, declaration, or testimony by a competent affiant, declarant, or witness based on his or her personal knowledge setting forth facts that would be admissible into evidence. See K.S.A. 2018 Supp. 60-256(e).”

The Kansas Supreme Court held that the plaintiff “failed to meet her burden in responding to the motions to dismiss when she failed to submit an affidavit, declaration, or other material permitted under K.S.A. 2018 Supp. 60-256 providing evidence that [the named plaintiff] was the plaintiff, that some or all the movants were the defendants sued in the petition submitted on June 22, and that the causes of action were the same or related to those in the petition submitted and file stamped on June 23. The district court lacked evidence of the factual predicate on which [the plaintiff’s] argument is based and therefore appropriately granted the defendants’ motions to dismiss.”

Source Lambert v. Peterson, No. 117,344.

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